By Christos ILIOPOULOS* - No transaction regarding real estate property can take place in Greece, unless a civil engineer issues a certificate that the property does not have illegal constructions or parts. This means that, apart from the
several other documents required for the transaction to be executed and the deed to be registered at the local land registry, for which it is usually the attorney of the involved parties who ensures the legality of the real estate transfer, the property must also be inspected by a civil engineer. The engineer’s work is to make sure and officially certify that either the plot or land does not have any building on it, or the house, apartment or store does not have any irregularities with regards to building regulations.
In Greece a large number of constructions, houses, buildings and apartments, have been built with minor or significant breaches of the building legislation. Those which have been built until 28 July 2011 can be legalized under certain conditions, the most significant of which is to pay a (usually affordable) fine. Those built after that date cannot be legalized and must be demolished. But the most serious consequence for any illegal construction built after 28 July 2011, or one built before that date but not legalized, is that it cannot be sold, gifted or transferred in any other way. This means that it is losing its market value.
The motive, therefore, to legalize any construction in Greece stems from the wish to sell or transfer the said property. Such sale or transfer cannot take place, unless the property is proven legal or legalized. Houses built before 1955 do not need any legalization.
The recent law updating the legalization process provides for the case where an entirely or partially illegal construction is owned by more than one owners and what happens if not all of them agree to follow the legalization process. When more than one people or legal entities own the same property, each of them is a joint owner of the property with a percentage share (ab indivisio ownership). They may be siblings or relatives, who inherited property, or anyone who ended up having a share on a property with one or more people. What happens if some of the co-owners of the property, which needs to be legalized, do not agree to file for legalization?
The updated law for the legalization (Law 4495/2017) in article 98 states that in the case where more than one person own the same property, which needs legalization, even one of them, irrespective of his/her percentage, can file for legalization, without the need of consent or approval by the other co-owners. In that case, the fine for the entire property will have to be paid by the co-owner who files for legalization. However, this co-owner retains the right to claim the amount he/she paid on behalf of the other co-owners, from them. This updated law clarifies what happens in case more than one co-owners of the same property (house, apartment) do not agree to file for legalization, leaving the common property outside the market, since it cannot be sold or transferred without being legalized.
It must be noted that properties lying at the seaside immediately touching the water (where it is illegal and unconstitutional to own any private property), properties within forest land, commonly used areas, archaeological sites and where streams/creeks exist or existed, can’t be legalized. Stricter rules for legalization of properties within environmentally protected areas (such as NATURA etc.) have now been imposed.
16 April 2018
. *Christos ILIOPOULOS, attorney at the Supreme Court of Greece , LL.M.